How States Handle Drug Use During Pregnancy

Across the country, hundreds of pregnant women and new mothers have been accused of child abuse or other crimes when they or their newborns tested positive for controlled substances. Laws on drug testing of infants and new mothers vary, but the stakes are always high. In many places, women lose their children or end up in behind bars, sometimes even if the drug was prescribed. Here is a survey of state laws.

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Substance abuse during pregnancy is a crime

Tennessee is the only state with a statute that specifically makes it a crime to use drugs while pregnant. In Alabama and South Carolina, high courts have interpreted existing child endangerment and chemical endangerment statutes to allow prosecution of drug-using pregnant women and new mothers.

Women have been prosecuted for drug use during pregnancy

Since 1973, authorities in at least 45 states have sought to prosecute women for exposing their unborn children to drugs. Those efforts continue under a wide variety of laws even in states where high courts have previously rejected the prosecution approach.

Substance abuse during pregnancy is child abuse

Eighteen states have laws that say drug use during pregnancy is child abuse.

Substance abuse during pregnancy is grounds for civil commitment

In three states — Minnesota, South Dakota and Wisconsin — women who use drugs during pregnancy can be involuntarily committed to a treatment program. The Wisconsin law is especially draconian: A woman can be detained against her will for the duration of her pregnancy, her fetus has its own court-appointed lawyer, she can lose custody of her baby after birth — and the proceedings are mostly secret.

Health care workers must report drug abuse during pregnancy

Fifteen states have laws requiring health care workers to report to authorities if they suspect a woman is abusing drugs during pregnancy.

Testing is required if drug use during pregnancy is suspected

Most states do not have a law that requires hospitals to test infants and new moms for controlled substances. In Minnesota and North Dakota, a test is required if there are drug-related complications at birth.

State

Substance abuse during pregnancy is a crime

Women have been prosecuted for drug use during pregnancy

Substance abuse during pregnancy is child abuse

Substance abuse during pregnancy is grounds for civil commitment

Health care workers must report drug abuse during pregnancy

Testing is required if drug use during pregnancy is suspected

What courts have said

Source: ProPublica research by Leticia Miranda and Christine Lee; Guttmacher Institute; National Advocates for Pregnant Women